Bad judges seem to be like boogers in a runny nose - there is a seemingly endless supply.

Jeopardy attaches when the jury is sworn in or, if there is no jury, when the first witness is sworn in. Any criminal case that ends for any other reason than because the defendant causes it to (either by his motion for mistrial or conduct so disruptive that it necessitates a mistrial) cannot be retried.

Oops! Hung jury is an exception as well.

This has to be one of the most ridiculous rulings I've ever heard come out of the federal courts.

If I were to give advice to the military, I'd tell them to take this all the way to the Supreme Court, if it needs to go that far. And, I'd be ordering Watada to endless latrine clean-up duty, arming him only with a soap, a bucket, and a toothbrush.

Despite Settle being appointed by the normally reliable George W. Bush (as far as nominations of judges), this guy is the picture of an activist judge, making up the law from the bench.

No, actually it's settled law. It's not just the prosecution -- the judge is also an agent of the State and he cannot mess with your right to one fair trial. Jeopardy in "double jeopardy" does not mean more than one judgment. It means more than one trial. Until you're bankrupt? Or until the government finds just the right judge and jury ... or just the right argument having learned from past failures?

Liberal, libertarian or conservative, this is a good rule. Statist, maybe not.

'[T]he Double Jeopardy Clause protects against three distinct abuses: [1] a second prosecution for the same offense after acquittal; [2] a second prosecution for the same offense after conviction; and [3] multiple punishments for the same offense.' U.S. v. Halper, 490 U.S. 435, 440 (1989).

Hmmmmm. No mention of a mistrial here.

Since there was no 1) acquittal; 2) conviction; or 3) punishment, it would appear (to this non-lawyer) there is no double jeopardy.

Halper is not on point. Oregon v. Kennedy has a pretty good discussion of double jeopardy in the context of mistrials and even though it ends up ruling in favor of the government draws a fair demarcation.

Nk:

But it was Watada's own actions that led to the mistrial: He stipulated (though his attorney) to a series of facts... and then based his defense upon the negation of one of those facts to which he had stipulated.

It's like stipulating that you were present in the bank during the holdup -- and then basing your defense on an alibi that you were at a tailgate party across town.

The military judge at the court-martial concluded that Watada had either not understood what it meant to stipulate to a fact or had not understood the fact itself... hence the mistrial was due to a screwup by the defense, not the prosecution or judge.

Judge Settle simply declared, from his lofty position, that the military judge had deliberately declared a mistrial abusively in order to deny Watada his day in court, the meanie.

Dafydd

In Oakland, California in the mid 1970s, I served on a jury that heard for the third time a charge of an attempted murder of a policeman by a member of the Vietnam Veterans against the War. We were a hung jury also. At the time I believed that both the police officer and the VVW member were at fault – the policeman acting effectively as a civilian during a physical altercation where the VVW member’s Swiss Army knife was later found on the ground. I thought the charges should have been dropped and that this persecutor overstepped his bounds based on the evidence we saw. As with the Duke case, there needs to be some way to keep prosecutors from overreaching, but I totally disagree with this judge’s ruling. He needs to hear a little bit of a discussion about his impeachment for incompetence.

A man saw a fish in the water for the first time. To save the fish, he pulled it out of the water. It was not the military judge's duty to dictate the defense's strategy. It was his duty to simply make evidentiary rulings and instruct the jury. It's important, here, that the government moved for a mistrial and the defendant objected. Ok, maybe the government was sandbagged. Welcome to our adversarial system of justice. Fooling the prosecutor into doing things that even if they won't get your client acquitted will give you appealable issues is not "manifest necessity" for a mistrial. The remedy is for that prosecutor to be assigned to drafting procurement contracts and not trying cases.

Also, I am in no sense on the side of Watada, but I don't get why the government thinks it should squash a bug with a cannon. They should have just busted him down to private and had him clean latrines until his term of enlistment was over.

Nk:

Also, I am in no sense on the side of Watada, but I don't get why the government thinks it should squash a bug with a cannon. They should have just busted him down to private and had him clean latrines until his term of enlistment was over.

Then you are on Watada's side; you don't even think that there should be courts-martial for military officers who refuse to obey commands, show cowardice, and engage in inflammatory attacks on the C in C that constitute conduct unbecoming an officer.

How about for military officers or enlisted men who engage in adultery? Should they be subject to prosecution? Or what about officers who fraternize with enlisted in defiance of the UCMJ? Or any other action which is a crime under the UCMJ but not under civilian statute... should it be prosecuted with a court-martial?

Do you believe that soldiers on active duty have their full First-Amendment and Fourth-Amendment rights? Do they have the "right" to talk to their troops, tell them that the CO is incompetent and is going to get them killed, and urge them not to obey orders? Do you believe a private can forbid his DI to inspect his footlocker without a warrant from a civilian federal judge? And do they have the "right" peaceably to assemble with anyone they want... including the enemy?

What do you believe should be subject to court-martial? Anything? Or do you believe that we should abolish courts-martial altogether and simply try soldiers in civilian courts for violations of the UCMJ?

I am increasingly puzzled by your positions on this case. It seems quite clear that you have become a de-facto counsel for Watada's defense, now even going to far as to wonder why a soldier who violated the UCMJ should be subject to a court-martial, rather than simply be "busted down to private."

But you cannot reduce a commissioned officer to the rank of private via NJP; such a drastic reduction requires a court-martial. And I'm not sure that's even an allowable punishment at such a trial.

So you don't want him court-martialed... you just want the Army to give him a punishment -- that they could only impose after a court-martial, if even then!

By the way, what is the caselaw regarding "double jeopardy" in courts-martial? Have civilian courts defined what DJ means for military justice? Can you cite that case, so we can at least know what we're talking about? I believe the cases cited here have all been for civilian criminal trials... the procedures at courts-martial are different.

Thanks,

Dafydd

Dafydd,

I have a pro-defense bias and I can't deny it.

As for the law, on page twenty of his opinion Judge Settle cites provisions of the UCMJ which make the Fifth Amendment's prohibition against double jeopardy applicable to courts martial. I was also aware of the Supreme Court case Grafton v. U.S. which applied Fifth Amendment double jeopardy to courts martial.

Nk:

Nk, I know they have a prohibition on DJ; but what does the caselaw say about what triggers it?

Military courts-martial are run differently, with different procedures than civilian criminal trials; don't you need caselaw coming from military courts -- or at least caselaw from a federal court that defines what triggers DJ specifically during a court-martial?

I wanted you to quote from it, so we'd know what the criteria are... not just to note that there is such a thing as a prohibition on double jeopardy in courts-martial -- which I think we already knew. <g>

At what point in the proceedings is DJ triggered curing a court-martial; does there have to be an acquittal or will a mistrial do; and if the latter, then what are the exceptions?

Thanks,

Dafydd

Dafydd,

Apparently it's codified in the Courts Martial Manual, RCM 915:

"According to RCM 915(a), Manual for Courts-Martial, United States (1995 ed.), "[t]he military judge may, as a matter of discretion, declare a mistrial when such action is manifestly necessary in the interest of justice because of circumstances arising during the proceedings which cast substantial doubt upon the fairness of the proceedings." "The power to grant a mistrial should be used with great caution, under urgent circumstances, and for plain and obvious reasons . . . [such as] when inadmissible matters so prejudicial that a curative instruction would be inadequate are brought to the attention of the members . . . ." RCM 915(a), Discussion. This Court has previously referred to a mistrial as a "drastic remedy" that the military judge should order only when necessary to "prevent a miscarriage of justice." United States v. Garces, 32 MJ 345, 349 (CMA 1991)."

"Manifest necessity" is the standard just as in civilian cases. Judge Settle cites U.S. v. Ghent, a MJ case which might give us a better illustration, but I cannot find a link to it.

Nk:

Again, you're not answering the call of my question; and I understand that the answer may not be easy to find -- and may not even be online at all.

Here is the question:

A court-martial begins. At some point during the proceedings, the military judge declares a mistrial.

What has to have already transpired during this trial for the defendant to be able to successfully claim that he cannot be tried by the military court again due to the prohibition against double-jeopardy?

Anent civilian court, you answered that if the jury is empaneled or, in the case of a trial by judge, if the first witness has been called, then the defendant can argue double jeopardy. My question is, do you have caselaw showing that the same "trigger points" apply in courts-martial?

Also, you said there were exceptions; there must be... else any defendant could beat any rap by waiting until the trial is underway, then doing something so outrageous and prejudicial to himself that the judge is forced to declare a mistrial -- and the defendant then argues "double jeopardy" and can't be tried again.

Two exceptions you noted were (a) when the mistrial is caused by the defendant or his legal team, or (b) when the mistrial is due to a hung jury.

Again, do you have access to caselaw telling us what all the exceptions are to the DJ rule in a military court-martial?

That is the question I'm after.

(I assume the judge declared a mistrial in this case because, after Watada stipulated to certain facts, the prosecution built an entire case around assuming those facts. When Watada then wanted to argue that those facts were not actually true, and to present evidence of such, that was so prejudicial to the prosecution's case -- they were unprepared to present evidence for what had already been stipulated -- that the only thing that made any sense was to start all over again. We don't even know if any witnesses had been called yet. It's possible the military judge believed that the defense had done this on purpose to improperly screw the prosecution.)

Dafydd

Dafydd-

The military judge at the court-martial concluded that Watada had either not understood what it meant to stipulate to a fact or had not understood the fact itself... hence the mistrial was due to a screwup by the defense, not the prosecution or judge.

Sorry, Dafydd, but if you read the opinion, kindly provided by nk, Judge Settle concluded that the military trial judge screwed up in declaring a mistrial. He devotes many pages to describing in excruciating detail the nature of the screw-up.

I’m no lawyer, but according to the opinion, once jeopardy has attached, if the defense objects to a declaration of mistrial (which they did here), then the prosecution has an extraordinarily heavy burden to justify going to trial a second time. And it looks like judicial screw-ups are not sufficient reason.

We may not like the result -- I think Mr. Watada deserves to do some serious time -- but what happened here is that he, in layman’s terms, “got off on a technicality.” Something like a guilty person getting off because no one read him his Miranda warning.

When Watada then wanted to argue that those facts were not actually true...

Actually, all Watada tried to do was recharacterize his intent, not argue the facts themselves.

(The perils of arguing legal matters based on news accounts.)

Dafydd,

Even if I were to spend a week at the law library researching it and writing a proper legal memorandum, I doubt that I would do a better job than Judge Settle did. I have no reason to believe that his authorities do not stand for the propositions for which he cites them or that he missed some which are more "on point".

I would like to see U.S. v. Ghent because it may be exactly the case we are looking for, but there's also support that since U.S. v. Grafton in 1907 courts martial and civilian criminal courts have followed the same rules for double jeopardy in Section 844 of the UCMJ and RCM 915(a).

Dick E.:

I'm well aware that Judge Settle believes that the judge erred in declaring a mistrial. But honestly, that's hardly dispositive... just as Settle thinks Head screwed up, an appellate court panel may decide that Settle screwed up.

In this case, I find it monstrous and outrageous that the defendant can diddle a court-martial like this... and then have a civilian judge hop in and overrule the military -- on a purely military matter involving military personnel. And I'm nowise convinced that Settle has the legal authority to second-guess Judge Head... despite Settle writing 6,349 pages of opinion as to why he knows better than the trial judge.

(Heck, Judge Thelton Henderson had a long, long opinion explaining why California Proposition 209, which banned racial discrimination, was actually racially discriminatory. Fortunately, the appellate courts disagreed with the judge.)

I shall be fascinated to see how the 9th rules, and then how the USSC rules, as it will certainly reach that august body.

In the end, it may turn out that the UCMJ is so poorly written that a civilian judge can simply step in and prevent the Army from prosecuting soldiers who disobey orders and smashmouth their commanding officers. If that is the case, then we urgently need to rewrite the UCMJ -- and Congress needs to make clear that civilian federal courts do not have jurisdiction in such cases.

But at this point, all we have is the position of one, single judge... Benjamin Settle.

Dafydd

Nk:

Let's step back from the weeds for a moment and look at the larger issue.

If "manifest necessity" is the standard for a judge to declare a mistrial -- whether in civilian court or a court-martial -- then the standard for when a civilian judge should jump into a court-martial and second-guess the military judge should be "dire necessity"... which I would define as the danger of a horrific miscarriage of justice, where a defendant who is likely innocent is about to be railroaded by an out-of-control court-martial.

Contrariwise, Judge Settle jumped into a case because a defendant who is almost certainly guilty failed to get himself off on a technicality in his court-martial -- and Settle wanted to make sure he succeeded instead.

That is not dire necessity; it's not even manifest necessity. It's a perfect example of what I call the readjudication syndrome: "Well, I would have decided that case differently... so I'll overturn the decision of the other judge," as opposed to only overturning a decision if there is no plausible reason why the first judge could possibly have made that decision other than gross negligence.

In other words, I believe Settle treated this case as he would any ordinary appeal from, say, a county court in his jurisdiction -- rather than recognizing that there is a separation of powers issue here: Military courts and tribunals are part of the Executive branch, not the Judiciary; and civilian judges should only invene -- well, under my "dire necessity" standard.

The USSC appears to have been using the dire necessity standard (without articulating it) when it intervened in the Hamdi case. The Executive was holding people at Guantanamo Bay indefinitely, without even conducting its own hearings to determine whether it was holding the right people.

But you'll notice that even in the Hamdi case, the Court did not say that the detainees had to be tried by civilian courts; the Court agreed that the Executive could determine their status, subject to certain standards set by the Court.

So what is the authority for Settle to step in and readjudicate a purely military matter in a court-martial against a military officer in time of war?

This is what bothers me the most -- the casual assumption of jurisdiction by Judge Settle in the current circumstances.

Is that customary? Do civilian judges normally second-guess courts-martial of military officers during wartime, not merely in cases of a gross miscarriage of justice, but simply because they would have decided differently? Did they do so during WWII, Korea, or Vietnam?

Dafydd

Ah, Dafydd, I think I finally get your question. I would say that it is the Anti-Immigrant and Effective Death Penalty Act which redefined habeas corpus (as our Supremes saw it)and allowed courts the power not only to interfere in courts martial but also in the military tribunals trying unlawful combatants. See e.g. Hamzi and Hamdan which you have posted about. It is beyond my experience, too. Ordinarily, the case follows its course, you exhaust direct appeals, then you use collateral proceedings of which habeas corpus is one. One caveat although a small one: Interlocutory (in the middle of the trial) appeals are permitted on double jeopardy questions but they are still direct appeals and go to an appellate court, not a trial court, on the record below. Judge Settle's jurisdiction, notwithstanding the double jeopardy merits, may very well be where the ducks are should the government want to appeal his decision.

But what I'm thinking is this. The Army tells Watada: "The court martial is dead, welcome back. Here are your orders. You're getting on a plane to Fallujah, tomorrow." Totally new case if he refuses and the prosecutor, having learned from his mistakes, can get it right this time.

Nk:

I think I invented a new "portmanteau" case combining Hamzi and Hamdan, called "Hamdi." Er, ah, it was just shorthand... yeah, that's the ticket!

So you're suggesting that rather than be heard by district Judge Settle, Watada's appeal should have gone straight to a panel of the 9th Circus? And that therefore, it's possible that Settle didn't actually have jurisdiction on that appeal?

Interesting...

Dafydd

As best as I can tell from the UCMJ the first appeal is to the "convening authority" i.e. his general, then to the Army's Court of Appeals, after that to the Court of Appeals for the Armed Forces, and finally petition for writ of certiorari to the United States Supreme Court. When these are exhausted, he can petition for writ of habeas corpus in a federal dsitrict court.

P.S. Let's not forget that under Article III of the Constitution, the original jurisdiction of the district courts and the appellate jurisdiction of all the courts including the Supreme Court is strictly as legislated by Congress. So I would say that the construction of the AEDPA's habeas corpus provision is the most fruitful area of inquiry.

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